This is a revision petition under section 439, Cr. P. C., against the order, dated 15th February 196 ), of Additional Dis rict Magistrate, Bahawalnagar, whereby he, after reconstructing the record of depositions of ten prosecution witnesses lost during commitment proceedings, proceeded to use that record as evidence before him. The petitioner has also invoked the power of this Court under section 561-A, Cr. P. C.
2. The material circumstances leading up to this petition are that Mr. Akhtar Ali Jafri, Additional District Magistrate, .Bahawalnagar, was seized of a murder case at commitment stage, against several accused persons who are represented as respondents in this petition. Four P. Ws. i,e,, P. W. 3 to P. W. 6 were examined by him on 11th July 1968. Two P. Ws., i. e. P. W. 1 and P. W. 2 appear to have been examined by his predecessor. He examined threemore witnesses, i,e,, P. Ws. 7 to 9 on 13th August 1968. On 9th September 1968, P. Ws. 10 and 11 were examined. P. W. 11 is the doctor.
Thereafter, on 26th September 1968, two more witnesses, i,e,, P. W. 12 and P. W. 13 were examined while P. W. 14 and P. W. 15 were examined on 7th October 1968. On 17th October 1938, no witness was present; therefore, the case was adjourned to 29th October 1968, when it was reported to the learned Magistrate that the record of evidence, of P. Ws. 1 to 10 (Urdu and English both) recorded by him as well as by his predecessor was missing. He made an effort to find out the record but there was no trace of it. He recommended the registration of a case under section 379, P. P. C. One witness Muhammad Bashir was present but he was returned unexamined because. the learned Magistrate wanted, first, to be sure about the record. The case was adjourned and the parties were asked to prepare the arguments on the course to be adopted, in case ultimately, the record could not be found at on 28th November 1968, the learned Magistrate ordered that it was not necessary to record the evidence of all the ten witnesses, of whose depositions had been lost, and that the same be reconstructed from the carbon copies available with the defence counsel. Thereafter, he started recording the statements of different persons for the purpose of reconstruction of the record. They are C. W. 1 to C. W. 6 and include the two Typists of the Court. One clerk of a learned counsel for the defence and another learned counsel for the defence himself. The defence produced typed written copies of the depositions of P. Ws. 1 to 10 and vehemently contended that the same should be used as evidence for the purpose of commitment proceedings. In fact, they produced two copies each of the depositions of P. Ws. 1, 2 and 8 because each one of them was examined twice, presumably' on the transfer of the learned Presiding Officers and single copy each of the depositions of the remaining seven P. Ws. it appears that the statements of P. Ws. 1 and 2 were recorded by the predecessors of the learned Magistrate while one of the statements of Karim Bakhsh (P. W 8) was recorded by his predecessor and the other was recorded by himself. It does not appear that the learned Magistrate himself ever recorded the statements of P. Ws. 1 and 2. He, in any case, was proceeding to act, under section 350, Cr. P. C. on the statements of these two P.
Ws. recorded by his predecessors. All the carbon copies were supplied by the defence and they now constitute the so-called reconstructed record of the depositions of the said ten witnesses. The authenticity of the reconstructed record, as held by the learned Magistrate, can be well judged from the following observations made by him in the impugned order, dated 15th February 1969 :- "The Typists C. W's. were not in a position to remember that they had typed actually what was available on these copies. Nor any other witness could make that kind of statement.
The record as reconstructed now, under the circumstances of the case, is the nearest possible approximation to the record, that had been lost and therefore, I close the reconstruction of the record proceeding, and order that the record reconstructed be read as the evidence of P. W. 1 to P.
W. 10 as originally recorded and now as a sort of secondary evidence ..
I have carefully seen the typed copies in the so-called reconstructed record They are neither corrected by the Presiding Ofnor were they signed, or initialled by him when originally made. They were not, in fact, initialled or signed by any person including the Reader or' the Typist. It is clarified that these copies are only typed copies and are not certified to be true copies whether according to rules or otherwise.
The learned Magistrate, after the so-called reconstruction of the record, proceeded to use the same as evidence.
This petition has been moved by the complainant side, challenging the order of the learned Magistrate reconstructing the depositions, as well as, The intended use as evidence thereof.
3. Mr. A. R. Tayyib, the learned counsel for the petitioner, has argued that the evidence of C. Ws. 1 to 6 is not sufficient and authentic to prove that the disputed copies are, in fact, true copies. On this assumption, he further argued that the said copies could not be used in either the commitment proceedings or at the trial, and that the only course open to the learned Magistrate was to record the statements of those witnesses afresh ; for which course, according to him, section 350(1), Cr. P.
C. provided sufficient support. In the alternative, he prayed that if section 350 was not available to the learned Magistrate for such a course, the matter being before the High Court the same could be dealt with under section 561-A, Cr. P. C.
Mr. Fakhar-ud-Din Pirzada, the learned counsel appearing for the State, strongly supported the arguments of Mr. A. R. Tayyib and went a step further in asserting that it is not possible, at all, under the law, to have recourse to the reconstruction of the lost record.
Sardar Mahmud Khan, the learned counsel for the accused-respondents has, however, argued that the witnesses having appeared and made statements, there was no provision in the Criminal Procedure Code for their re-examination and that section 350, Cr. P. C. did not apply to the proceedings before the learned Magistrate. He relied on the High Court Rules and Orders, Volume IV, Chapter 19-A, clause 5 to contend that in case of loss of record, the reconstruction thereof was not only possible but was required under the rules. In the alternative, however, he suggested that the statement of one eye-witness could be recorded by the learned Magistrate afresh and that there being no rule as to quantum of evidence, the case could still be committed on the statement of that one eye-witness.
After hearing the learned counsel at some length, I passed the following short order. I could not record my reasons then, because it was the last day of the Circuit at Bahawalpur and there were other part-heard matters to be dealt with.
"For reascns to be recorded later, I accept this petition and direct -- (i)that the learned Magistrate shall examined afresh all those prosecution witnesses (P. W. 1 to P.
W. 10) whose statements recorded earlier are alleged to have been stolen/destroyed; (ii)that during the examination-in-chief/cross-examination/ re-examination of any of these witnesses the parties will be allowed to use the reconstructed statement or any other statement alleged to have been made by him earlier in the enquiry, as the previous statement of the witness.
This direction is subject, of course, to the law relating to use and proof of any alleged previous statement. In connection with proof of alleged previous statement, the parties may rely on the evidence already recorded in the reconstruction proceedings and also on any additional evidence which may be produced/received in this behalf according to law ; (iii)that the record of proceedings relating to the reconstruction of the statements allegedly of the P. Ws. together with the so reconstructed statements and the record of any statements alleged to have been made by the witnesses earlier during the enquiry shall be sent to the Court of Session for use at the trial, if the case is ultimately committed ; and (iv)that the learned Magistrate shall record the statements of these witnesses, if possible, from day to day and try to complete the same within shortest possible time. The learned counsel for the petitioner and the State have undertaken to produce all the witnesses on date/dates to be fixed by the learned Magistrate.
2. This entire record of the case so far received by the High Court in connection with this petition shall be returned to the learned committing Magistrate immediately.
3. This is an old case. The learned committing Magistrate shall complete the commitment proceedings without any avoidable delay.
I now proceed to give my detailed reasons.
4. It has to be stated as an accepted proposition that during the commitment proceedings, the Magistrate records the statements of the witnesses as evidence. The law and all the rules relating to the recording, admissibility, value and other incidence of evidence are fully applicable to those proceedings. When the committing Magistrate passes an order as to commitment or otherwise, he acts on the "evidence" so recorded by him, therefore, whatever the record or its source may be, it will have to be straightaway held that the material, on which the Magistrate has to act, has to be "evidence" and nothing else. The next question that arises is whether the typed copies, which have been placed on the record as the reconstructed depositions of the witnesses, can be treated as evidence. Undoubtedly, they are not the primary evidence of the depositions made by those witnesses and admittedly, the primary evidence was not produced. Therefore, the learned Magistrate has proceeded to act on secondary evidence. In treating the disputed copies as secondary evidence, the learned Magistrate has made certain observations about his conclusions ; which do not permit a course which he ultimately adopted. Those observations, which have been quoted above, are further analysed as follows:-- (i)He did not treat the copies as secondary evidence according to law but treated it as "a sort of secondary evidence". Either a piece of evidence is primary evidence or secondary evidence. There is absolutely no scope for; either an intermediary supposition between these two types of evidence or a diluted secondary evidence in the form of, as the learned Magistrate put it, sort of secondary evidence. The law is very strict on the questions of the scope and use of evidence. It does not permit any such lax treatment of the material to be used as evidence.
(ii)The learned Magistrate has clearly held that the Typists, who in fact are alleged to be the source producers of the typed copies, were not sure whether they had, in fact, typed the same material as was found on those copies. He further observed that no other witness could make such a claim. On this question, Sardar Mahmud Khan, the learned counsel for the respondents, has very frankly, and I appreciate that frankness, conceded that nobody could, at all, be certain about the fact whether or not the disputed copies were really true copies. I am also of the view that the C. Ws., who appeared before the learned Magistrate for .purpose of reconstruction of the record, were not, at all, in a position to say whether or not the copies were true copies. Therefore, according to the above estimate of the strength of the disputed copies, it cannot, at present be held that they can be acted upon by the learned Magistrate as evidence.
(iii)The learned Magistrate has himself observed that the depositions as reconstructed, under the circumstances of the case, which he difinitely presumed to be peculiar, were only the nearest possible approximation of the original record. In this very pithy phrase, the learned Magistrate has assumed a doubt while using the word "nearest" and exposed that doubt to its full implications by using the phrases "possible approximation". If immediately after the reconstruction of the record the mental approach of the learned Magistrate to the so called reconstructed evidence is that it is only a possible approximation, how is it possible for him, at a later stage, while deciding the question of commitment or otherwise, to act on such material, treating it as evidence.
(iv)In juxtaposition to the above circumstances, a glaring fact remains admitted and established that all those persons, who made the statements as P. Ws. 1 to 10, are alive and available to be examined as witnesses. They, undoubtedly, being one set of persons and directly concerned with the question in issue, were competent witnesses in the enquiry as to reconstruction of the record and none of them has been examined. This does not mean that no value at all can be attached to the statements made by other C. Ws. In this behalf; but the fact remains that a material part of evidence available, on the question of reconstruction, has not been recorded.
(v)Another admitted fact is that the learned Magistrate himself recorded the statements of, at least, eight witnesses out of ten. He must have given the dictation and may be in a position to say whether or not the disputed copies were the true copies. However, he has not, at all, expressed his own opinion about that matter and has entirely relied on the evidence produced before him during the enquiry as to reconstruction. Similarly, the Reader of the Court who, it is presumed, must have taken down the depositions in Urdu, was another competent person to say as to whether or not the disputed copies were the correct copies of the original depositions; but he has not been examined.
(vi)And above all, the disputed copies are not certified to be true copies nor have they been corrected and initialled by the learned Magistrate; and thus, in any case, they cannot be held to be, correct copies on the evidence before and finding by the learned Magistrate.
The above analysis shows that, as the matter stands, at the present stage, the disputed copies cannot, at all, be treated as absolutely true copies of the original depositions made by the witnesses. And on the view that I have taken about the nature of the proceedings during commitment, the same cannot be used by the learned Magistrate as evidence, without there being some additional material with regard to the actual statements made by the witnesses. One source of such material can be the statements of those witnesses themselves.
5. The stress of the petitioner's learned counsel on state section 350(1), Cr. P. C. is, in my view, misplaced and it does not help him. The initial pre-condition for the application of section 350, Cr P. C. is that whenever a Magistrate, after having heard and recorded the evidence in an enquiry, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate, the latter Magistrate so succeeding may then either act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself, or he may resummons the witnesses and recommence the enquiry. At least, the statements of eight witnesses were recorded by Mr. Akhtar Ali Jafri, and he cannot be considered to be a successor of himself qua those statements. Therefore, he cannot act under section 350(1) Cr. P. C., in so far as the statements of those eight B witnesses are concerned. With regard to the statements of P. Ws. 1 and 2 recorded by his predecessor, he may have, under section 350(1), resummoned those witnesses and recorded their statements: but when he took over the charge from his predecessor, he did not act under that section, i. e. 350(1) and proceeded to accept the statements of those two witnesses, recorded by his predecessor, as evidence to be acted upon by him. It is highly doubtful whether at this stage, he can act under section 350(1), Cr. P. C., to resummon those witnesses and record their statements. It may amount to the review of the course adopted by him at the stage that the case came before him.
Sardar Mahmud Khan, the learned counsel for the accused respondents cited Bashir v. Crown and Hakim Khan v. The State , to contend that section 350, Cr. P. C. is not applicable to the commitment proceedings. It may be pointed out that these cases related to the trial, before the Sessions Judge. It was held that section 350, Cr. P. C. was not applicable and that a successor Judge, at any stage of the trial could not act upon the evidence recorded by his predecessor Judge. No observation is found in those two cases to indicate that section 350, Cr. P. C. was not applicable to the proceedings during enquiry by a committing Magistrate. On the contrary, in the first mentioned case of Bashir, observations were made which are to the effect that the Judge who convicts, must do so on the evidence heard by him, and an exception from this rule is justified only when a particular case comes within an exception recognised by statute and that no such exception was applicable to that case because section 350, Cr. P. C. applied only to proceedings before Magistrates and a trial before a Court of Session was certainly not a proceeding before Magistrate. It was assumed that section 350, Cr. P. C. applies to the proceedings before Magistrates and those proceedings can be either that of enquiry or of trial. This supposition by me is further strengthened by the use of a definite expression in the heading of section 350, Cr. P. C., that is, "conviction of commitment on evidence partly recorded by one Magistrate and partly by another".
The use of the specific word commitment" in section 350, Cr. P. C. leaves no doubt in respect of the proposition that it applies to the commitment proceedings also.
In this very connection, the learned counsel for the accused-respondents argued that the commitment proceedings are provided in an exclusive part of the Criminal Procedure Code, i e , Chapter XVIII; and there being no parallel provision in that Chapter with regard to the subject- matter dealt in section 350(1), it should be presumed that the Legislature never intended that a committing Magistrate should act in the manner as provided in section 350, Cr. P. C. I do not agree with this reasoning by the learned counsel either. One reason, 1 have already stated, is that section '350 itself deals with enquire as well as trial and the word "commitment" is clearly mentioned in the heading thereof. The second reason is that section 350 falls within Chapter XXIV which deals with the "general provisions as to inquiries and trials". Unless there is a specific bar in Chapter XVIII, the provisions contained in section 350 will clearly be held to be applicable to the proceedings during the commitment; and. admittedly, there being no such specific bar in Chapter XVIII, 1 decline to accept the proposition put forth by the learned counsel that section 350 does not apply to the commitment proceedings. Before proceeding further, I may add here that the use of an expression in the heading part of the section for construing the true meaning of section 350, Cr. P.
C. is only in the context of the provisions referred to and to be interpreted in this case and is not to be considered as a general binding rule of interpretation. It depends upon the circumstances of a given case whether or not the heading part of a provision is to be pressed into service for the1 2 purpose of its interpretation. Therefore, I hold that section 350, Cr. P. C. does apply to commitment proceedings, but for reasons stated earlier, it does not apply to this case.
6. The learned counsel for the petitioner cited some cases in support of his contention that the learned Magistrate should record the statements of P. Ws. 1 to 10 afresh.
In Bali v. The Stale , at the time of hearing of a criminal appeal filed by a convict in a rape case, it was found that the record of the trial was stolen some time earlier and the reconstruction thereof was not possible. In the circumstances, Changez, J., obsers ed that with a view to secure the ends of justice, in the circumstances of that case, it was necessary to exercise the inherent jurisdiction of the Court under section 561-A Cr. P. C., and ordered a retrial.
In In re : Sevugaperumal and others after the filing of the appeal in the High Court in a criminal case, the records were destroyed by fire and no copies were available for the appellate Court. The only course open to the Court was an order as to retrial because it was felt that an appeal under section 423(1), Cr P. C., could not be decided without record.
In In re: N. S. Subramania Ayyar ,, the accused r ersons were convicted of criminal breach of trust by the trial Magistrate but were acquitted in appeal. In revision, however, the appellate order was set aside and the appeal was ordered to be reheard. But the appeal could not be reheard because the Appellate Court itself was burnt and the record was destroyed. In that case, it was pertinent to note, certain copies of the prosecution evidence were available but Oat of the defence evidence were not available. The Appellate Court, in the circumstances, set aside the conviction and ordered a de novo trial. The complainant filed a revision petition in the High Court which was dismissed with the observation-- "It is stated that the summary of the evidence as given in the judgment as also in the notes which were prepared by the counsel for the complainant' could be looked into and 'the records reconstructed. But then such notes cannot be taken as containing everything that was stated by the witnesses. In a criminal case, it is certainly not safe to dispose of a case without having all the necessary material. In these circumstances the only course open to the Magistrate was to have ordered a de novo trial...
In an eariler Full Bench case of Madras on the Civil side however, a different view was taken. The case is reported as Marakkarutti and others v. Veeran Kutty and others . When an appeal from the District Munsif was pending in the Court of the District Judge, the former Court was destroyed in the Moplah rebellion and the records of the case were irretrievable lost. The question arose, in many similar cases, as to what should be the course of action in respect of the records which were still needed in judicial proceedings at different stages. The District Judge finding himself in some difficulty sought the direction from the High Court by means of a reference. The Full Bench laid down as a basic principle that there is inherent power in every Court to reconstruct its own records and it follows therefrom that there is an inherent power in the Appellate Court to reconstruct the records of the Court from which an appeal lies to, it. I am in respectful agreement with this proposition of law and it applies with full force to-civil as well as criminal Court.
7. The above view finds support from the following authorities; an English case reported as Sanderson y. Wallker another English case Douglass v. Yallop an American case McLendon v.
Jones a Division Bench case from Calcutta Babu Guru Dayat Singh v. Durbaree Lal Tawaree another Calcutta case Narsingh Narain v. Hurkhoo Singh yet another case from Calcutta Raj Gir Sahaya v. Ishwardhari Singh and a case from Madras Kamakshmma v. Emperor .
Black, on judgments, expressed himself in favour of the power of the Court in supplying a new record where the original has been lost or destroyed. This power according to him, is indepenient of Legislation. In American system, in some matters, jurisdiction has been conceded to Courts by way of statutory provisions, as to the reconstruction of its lost record. This, it appears is only the recognition of a common law rule conceding power to a Court of general jurisdiction to restore or3 4 5 6 7 8 9 10 11 12 13 supply its own records where they have been lost or destroyed, and this power may be exercised either after or before the judgment. In Domat's Civil Law, Chapter XII, section 17, page 88 it is observed as follows :- "Since laws are general rules they cannot regulate the time to come, so as to make express provision against all inconveniences, which are in finite in number, and so that their dispositions shall express all the cases that may possibly happen. It is the duty of the law-giver to foresee only the most natural and ordinary events, and to form his dispositions in such a manner that, without entering into the details of singular cases, he may establish rules applicable to them all and next, it is the duty of the Judges to apply laws not only to what appears to be regulated by their express dispositions but to all cases to which a just application of them may be made, and which appear to be comprehended either within the express sense of the law or within the consequences that may be gathered from it." This rule of unwritten law has been recognised in Pakistan also. West Pakistan High Court Rules and Orders, Volume IV, Chapter 19-A, clause 5 supports the view that whenever judicial record or file or correspondence is found to have been seriously damaged, tampered with, destroyed, lost or mislaid, every effort should be made to replace the missing or damaged papers from all available sources. This rule can be interpreted in two ways. Firstly, that the missing or damaged papers should be proved by primary evidence as defined in section 62 of the Evidence Act. Secondly, if the primary evidence is not available, the papers may be replaced by secondary evidence as defined in section 63 of the Evidence Act. The rule, as to the inherent power of the Court to reconstruct its own record or record of the Courts subject to its supervisory jurisdiction, can be deduced from the observations of their Lordships of the Supreme Court in Sultan Mahmood v. Government of West Pakistan This was a case relating to a service matter. A seniority list which, according to Kaikaus, J., made all the difference in the decision of the case, had disappeared from the record. His Lordship, while dealing with the question of reconstruction of the seniority list, observed as follows : -- "Rights of persons cannot be allowed to be affected by the disappearance of documents from files.
The proper course under the circumstances was that the document should have been reconstructed and its copy placed on the file. All this would in that case have been avoided."
Though this was a case of slightly different nature, in that the said seniority list could be prepared afresh from other material available on the files, yet the fact remains that their Lordships approved the recourse to reconstruction of documents. Similar view was taken (for civil Courts) in Tulsi Ram v. Ram Saran Das and Ram Singh and others v. Pat Ram aad others . The principle thus is found to have been established in our system of law and in almost every other system of jurisprudence, that the reconstruction of lost record is within the inherent power of the authority of Court, concerned with that record, in original, appellate or supervisory capacity.
Therefore, I repel the extreme contention of the learned counsel for the State that reconstruction of record is, in no case, permissible by law.
8. This, however, is subject to a very important limitation that the record so reconstructed, if it is to be used in a cause to which the Evidence Act or other rules of evidence are applicable, must conform to that law, unless this condition is satisfied, the material, even if reconstructed from different sources, may not be qualified to be used as evidence. It is needless to emphasize that the word "evidence" has been defined in section 3 of Evidence Act and carries an important connotation in so far as the relevancy, admissibility and proof is concerned. In order to fulfil the above-mentioned limitation, the conditions as to the above concomitants of evidence will have to be satisfied.
In this connection, it is necessary to refer to sections 63 to 66 of Evidence Act which relate to the definition and use of secondary evidence. Sub-clause (c) of section 65 relates to the production of14 15 16 a secondary evidence, about the existing condition or contents of a document when the original has been destroyed or lost. In the Principles and Digest of the Law of Evidence by M. Monir, the following comment by the author is, in the context, of advantage :- "When the original document is lost or destroyed, or cannot be produced in reasonable time, and secondary evidence, for that reason, becomes admissible under clause (c) of section 65, any kind of secondary evidence recognised by section 63 may be given. Even if the original was a public document, or one which could only be proved by a certified copy under the penaltimate paragraph of this section (section 65), any secondary evidence would be admissible, and it is not necessary that a certified copy only should be produced in proof of its contents."
The learned author, in the later portion of the above commentary did, in fact, explain the statutory provision contained in section 65, "in cases (a), (c) and (d), and secondary evidence of the contents of the document is admissible". Any secondary evidence, as explained by the learned author, would be without any limitation only as to the separate subsections of section 63. In other words, it can fall under any of those subs actions; but the overriding condition noted in the above quotation always remains operative; that the evidence must fall within the definition of secondary evidence.
9. The learned counsel for the accused-respondents tries to rely on section 63 of Evidence Act, to contend that the disputed copies would fall within the definition of secondary evidence as envisasgged by the law of Evidence. He particularly relied on subsection (2) thereof which reads as follows :- "copies made from the original by mechanical processes which in themselves insure the accurracy of the copy and copies compared with such copies."
According to him, the disputed typed copies were made from the original by mechanical process of typing; therefore, they are covered by the above provision. The learned counsel has an important rider in respect of a copy prepared by mechanical process, i,e,, it should, in itself, ensure the accuracy of the copy. The learned counsel, as stated earlier, had frankly conceded that no body can be sure about the accuracy of the disputed copies. Indeed, at one stage, he argued that the High Court is unable to decide the question as to whether the copies were the true copies or not, and in so arguing he frankly stated that if the learned Magistrate had, on the evidence produced, held that they were absolutely true copies, he (the learned counsel) could not have supported that view. He, therefore, argued on the line taken by the learned Magistrate, in that it is only a nearest possible approximation. This reality admitted by the learned counsel and the finding by the 1 darned Magistrate takes out the disputed copies from the ambit of the provisions contained in section 63 which deals with secondary evidence. There is another aspects of the contention raised by the learned counsel. Section 63 defines what secondary evidence means and in include. It does not say that if once a particular piece of evidence falls within the four corners of the definition contained therein, it must be accepted as true evidence. If in spite of a material being technically covered by the said provision the Court remains in doubt about the truth or value of that material, it is at liberty to ignore it, as, in that case, it will not be true evidence, and if that is so it cannot be true secondary evidence. In this case, the circumstances are such that the disputed copies cannot be, on the material so far placed on the record, held to be true copies. Therefore, it cannot be treated as secondary evidence to prove what the witnesses stated during the commitment. There is yet another aspect of the same contention. The learned counsel appears to be correct in assuming that the disputed copies have been made by mechanical process, when it is said that they are typed copies. But it is fairly well known that the mechanical reproduction of the depositions of witnesses in the form of carbon typed copies; does not ensure the authenticity of that copy as being true copy of what is: `the read over 'affirmed correct' and 'signed' (by the Presiding Officer) deposition of the witness which is placed on the record. Apparently, as observed (in the Court) the elements of reading over, affirming by the witness as correct, corrections and the signatures of the Presiding Officer are missing on the disputed copies. Looked at in this Light, they cannot, at all, be called as true copies of the depositions. Even if the reading over and affirmation is assumed, the endorsement to which effect is also technically made on the carbon typed copies, the corrections by and signatures of the Presiding Officer are missing on the disputed copies. They cannot be called as "copies of the original depositions", and if they are not the copies at all there is no question of their being secondary evidence falling within the definition contained in section 63 of Evidence Act. With regard to the second part of subsection (2) of section 63, it has been admitted that the disputed copies were not, at all, compared with the original, corrected and signed depositions of the witnesses. Therefore, section 63 does not cover the present case. And the disputed copies cannot be used as evidence in an indirect way of so-called reconstruction of the record.
9. Reverting back to the Full Bench case of Marakkarutti from Madras High Court, it may be mentioned that Schwabe, C. J., who wrote the judgment and with which the other two learned Judges agreed, posed two alternatives which were possible to be followed in the eventuality of the loss of record: (1) to direct the reconstruction of the record by receiving such secondary evidence of the contents of the original records as may be forthcoming; and (2) to order an entirely new retrial. Relaying on the Calcutta case of Babu Guru Dayat Singh, referred to above, it was held that the first alternative was the better course to be adopted. In the latter case, the lower Appellate Court was directed to receive secondary evidence of the contents of the whole record, but, if not able thus to replace the record; it was further directed that the parties should be at liberty to adduce further evidence. The learned Chief Justice gave his own reasons for adopting the above view and in doing so made the following observation :-- "It will be for the Judge to whom the application is made to decide how the reconstruction of the record is to be attempted affidavits, counter-affidavits, the hearing of witnesses and the admission of copies are all methods which he can in a proper case allow. He will, of course, get the best evidence available.
But along with this observation, the following very weighty observation was also made:- "It may be that, in reconstructing the record, the Court will have to go very near to rehearing, but the Court will always have to apply its mind to ascertain not what the rights of the parties were, but what the destroyed record of the suit was and on that record, when reconstructed, it will have to act on the ordinary principles on which it would have acted if the original record had been before it." (Underlining is mine).
Thus it becomes clear from the above observations that not only the hearing of the witnesses, and, in effect, the re-hearing of the case, was not excluded as a possible alternative; but also that in reconstruction this very course (rehearing) may be adopted by the Court which has to deal with a matter, if the circumstances so warrant. The overriding factor, however, throughout remains that if the alternative with regard to the reconstruction of the record is adopted, the condition as to the admissibility of the so-called reconstructed record as evidence/ secondary evidence should be beyond any doubt.
In this case, as analysed in paragraph A above, it is clear that all the best evidence available has not been recorded by the learned Magistrate for the so-called reconstruction of the record, and his own findings are such that the disputed copies cannot be treated as secondary evidence under the law. If that is so, the alternative of rehearing of the witnesses, who are available, is the legal and proper course to be adopted.
10.In reaching the above conclusion, I have also considered the question whether the learned Magistrate should be directed to record more and better evidence for the purpose of reconstruction of the record and whether that direction should also include the further direction that the witnesses being alive and available should be examined for purpose of the record. If all those witnesses are to be examined with regard to the correctness or otherwise of the copies of their depositions, the main controversy will still remain difficult to be resolved because of another peculiar circumstance in the nature of the proceedings before the learned Magistrate. He is not the final Judge with regard to the facts of the case, because if there is a prima facie case, the trial is to be held before the Court of Session. The question whether or not a particular witness made a particular statement before the committing Magistrate will have to be finally determined for the purpose of trial by the Sessions Judge, of course subject to appeal. Therefore, it will not be proper to direct the learned Magistrate to examine further evidence on the question of the reconstruction of the record. The only other alternative left is to direct him to examine the P. Ws. afresh.
11.The learned counsel for the accused-respondents, in this connection, urged that the examination of the P. Ws. during the commitment proceedings is only for the benefit of the defence in that the copies of their depositions are to be used by the defence only under section 145 of Evidence Act, for contradicting the witnesses. Therefore, according to him, if the defence has accepted the disputed copies as true copies, it will not be illegal or even irregular to allow the disputed copies to remain on record as evidence to be used for the purpose of commitment and also for the purpose of trial. I have already a held that for the purpose of commitment, the Magistrate --cannot act on a material, unless it clearly constitutes legal M evidence; and because the so-called reconstructed dispute copies Zullan, J cannot be held to be secondary evidence as envisaged by Evidence Act, therefore, they cannot be used for that purpose. So far as the other part of this contention is concerned, I do not agree with the learned counsel that it is only for the use of the defence that the witnesses are examined at commitment stage and that the copies of their statements can be used only by the defence under section 145 of Evidence Act. In my view, the purpose of commitment is not to benefit the accused persons only. It is a part of the procedure for the enquiry and trial of certain cases and is to be used by all concerned; the Magistrate, the trial and Appellate Court, the prosecution and the defence. I need not give the supporting reasons for the above view. The matter is so obvious that it does not need any.
The learned counsel also contended that the prosecution will have another opportunity of examining those witnesses at the trial; therefore, it is not necessary, in this case, that there should be authentic proof of their depositions before the committing Magistrate, particularly when the defence is not disputing the authenticity of the reconstructed copies. This also is a fallacious argument and is based on the other contention mentioned in the preceding paragraph. The law, as it stands, requires that the witnesses should be examined at the commitment stage and then at the trial. This, of course, is subject to a condition that the committing Magistrate is not bound to record the entire evidence produced before him for the purpose of making an order as to commitment. He may, if satisfied on recording of some evidence, commit the case for trial and give notice to the parties of the remaining evidence which can then be produced at the trial. This question has been discussed at some length in a decision cited by the learned counsel himself. It is Emperor v. Jhabwala and others . It was held in the judgment delivered by Sulaiman, C. J. and Young, J., that sections 208 and 210 of Cr. P. C. do not mean that once the Magistrate is satisfied that the prosecution has established a prima facie case and the accused should be committed to the Court of Session, he is still bound to take down all the remaining evidence for the prosecution; nor do they mean that if the Magistrate, after hearing part of the evidence of the accused, is satisfied that there is no case for commitment, he should nevertheless proceed to complete the recording of the entire evidence. The meaning is that if the Magistrate does not take all the evidence that the prosecution wishes to produce and discharges the accused under section 209, or does not take all the evidence offered by the accused and nevertheless commits the accused17 under section 213, the order would be illegal. It was further held that section 347, Cr. P. C. also indicates that it is not correct to say that the Magistrate has absolutely no option but to hear the entire evidence of both sides, and that he cannot commit the case unless he has done so. The proper procedure is that the prosecution can place before the Court all the evidence on which they wish to rely, but after evidence has been taken, which is sufficient to make out a prima facie case, it is not necessary to call further evidence. Similarly if there is a mass of evidence tending to prove the same point, it is not necessary that all such evidence should be produced in the Magistrate's Court before the charge is framed. This, of course, was held to be subject to the limitation that notice of all evidence to be produced in the Sessions Court should be given to the accused before the trial, otherwise he would be prejudiced.
12. The learned counsel for the accused-respondents also contended that in case the learned Magistrate is directed to hear all the witnesses afresh, the defence will be deprived of an advantage, in case any statement favourable to them has been made by the witnesses in the earlier depositions and, according to him, is contained in the alleged reconstructed copies thereof which are disputed. In reply to this contention, both the learned counsel for the petitioner and the State contended that if the witnesses are examined afresh, the defence will have an opportunity of cross-examining them and in so doing can bring out the circumstances which can go in their favour qua the disputed depositions. In this reply, the learned counsel for the State further contended that the so-called reconstructed disputed copies should be treated as non-existent. I do not agree with any of the three learned counsel on this point. Each one of them adopted a position which suits him but has not been fair to the other so as to accommodate the opposite point of view as well. The position, as it stands at this stage, about the disputed copies is that they are according to the defence, the true copies of the depositions made by the witnesses while the petitioner and the State dispute this fact. The learned Magistrate has given a finding, but in a diluted form, in favour of the plea of the defence; That finding, as discussed above, is not conclusive on the point that the copies are, in fact, the true copies. I have already indicated that ultimately it is for the learned Sessions Judge, if the case is committed for trial, to give a determinative finding in respect of the disputed copies. If they are treated as non-existent, the learned Sessions Judge will be deprived of giving that finding, and while saying so I am conscious of the admitted fact that the ten witnesses did make same statements which have been lost. It cannot be said that their depositions, though not so far found to have been proved in writing, were never made or are non-existent. Therefore, it will be too much to deprive the defence of the use of the so-called reconstructed copies as their version of the true copies of the depositions made by the witnesses. The defence will be at liberty to use these copies as the proof of the statements made by the witnesses, subject, of course (and this is important) to the law and procedure for the use of the previous statements and also subject to the final determination as to their correctness by the Court which is to finally decide the case. Therefore, with the above observations, I find no justification for the apprehension expressed by the learned counsel for the accused-respondents and the extreme position taken by the learned counsel for the petitioner and the State.
13, The learned counsel for the accused-respondents, at one stage, also suggested that there is no provision in the Criminal Procedure Code, for the recording of the statements of the witnesses during the same enquiry or trial twice over; and that, therefore, the High Court has no power to interfere with the order passed by the learned Magistrate. I do not agree with the contention, of the learned counsel even, as a general proposition. There are such provisions in the Criminal Procedure Code. One has already been referred to and that is section 350; but I have held in that behalf that the said provision is not applicable to the circumstances of the present case except in respect of two witnesses, i,e,, Khudaija (P. W. 1) and Manzoor (P. W. 2). Amongst other provisions, section 349
(2) is another example of examination of a witness for more than once during the same enquiry or trial. There is yet another such provision which, to my mind, is more important and can be applied to the circumstances of the case like the present one, and that is section 540, Cr. P. C. It reads as follows :- "Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."
There is absolutely no statutory limitation with regard to the circumstances in which the Court may examine the witness twice over. Rather, on the contrary, the section is clear enough that a person, who has already been examined, may be recalled and re-examined by the Court. In this section, it is further noticed, there is no limitation of the nature that the subsequent examination be, by a successor Magistrate as is provided in section 350, Cr. P. C. The above provisions (section 540) are fully attracted to this case; and in the light of the above discussion, I am of the view that this section could have been pressed into service by the learned Magistrate. This petition, as explained in the opening part of the judgment, has been presented under sections 439 and 561-A, Cr. P. C.
Under section 439, this Court has the power to correct the errors committed by the Magistrate in an enquiry or a trial and I can, while correcting the error, direct him to act under section 540, Cr. P. C. for recalling and re-examining the witnesses already examined during the enquiry.
In any case, if section 540 is not applicable, the matter having come before the High Court and having been noticed by it, the provisions contained in section 561-A get straight away attracted. In the circumstances of this case, as discussed above in detail, nothing in the Code will be deemed to limit or affect the inherent power of this Court to pass such orders as may be necessary to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. The facts, as proved and noted, are such that if the error is not corrected at this stage, and if at the time, or after the decision, of the main case or at any subsequent stage it is found that the course adopted by the learned Magistrate was illegal and improper, at that stage the realisation of a major defect due to the failure to examine the prosecution witnesses afresh would, undoubtedly, appear to be the abuse of the process of the Court. And, in any case, the circumstances warrant that in order to secure the ends of justice, so far as the interest of all the parties is concerned, the prosecution witnesses should be examined afresh by the Magistrate in the commitment proceedings, and, therefore, necessary orders and direction, as envisaged in section 561-A, Cr. P. C., can be made by the High Court. In reaching the above view, I have also taken note of the concession made, of course very rightly, by the learned counsel that in order to obviate any objection as to the value and admissibility of the reconstructed disputed copies, the committing Magistrate may re- examine one eye-witness, and he could then commit the case for trial to the Sessions Court on the basis of the deposition of that one eye-witness. I have further taken note of a reply given by the learned counsel on my question as to which provision will be attracted for the examination of that one eye-witness. The reply again was that the only such provision, which could be possibly attracted, is section 540, Cr. P. C.
14. In the light of the above discussion, this petition merits to be accepted. 1, therefore, set aside the orders of the learned Magistrate, in the terms and with the directions already indicated in my short order, dated 22nd May 1969, which has been reproduced in paragraph No, 3 of the judgment. PLD 1950 Lah. 244 PLD 1959 Pesh. 20 PLD 1961 Lah. 45 AIR 1943 Mad. 3911 2 3 4 AIR 1944 Mad. 414 AIR 1923 Mad, 647 (1836) 40 E R 413 (1759) 97 E R 332 (1845) 42 Am. Dec. 640 (1867) 7 W R 18 8 C L J 521 11 CLJ 243 AIR 1915 Mad. 1038 PLD 1964 SC 302 AIR 1925 P C 80 AIR 1933 Lah. 782 L R 55 All. 1040